New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration

Complex Lit Blog

RICO Standing — Creditor Lacks Standing to Sue Until Collateral and All Alternative Sources of Recovery Are Exhausted

From Harbinger Capital Partners Master Fund I, Ltd. v. Wachovia Capital Markets, LLC, 2008 U.S. Dist. LEXIS 67462 (S.D.N.Y. Aug. 26, 2008): [1. RICO Standing vs. Article III Standing.] [E]stablishing "RICO standing is a more rigorous matter than [establishing] standing under Article III." Denney v. Deutsche Bank AG, 44 ...
From Harbinger Capital Partners Master Fund I, Ltd. v. Wachovia Capital Markets, LLC, 2008 U.S. Dist. LEXIS 67462 (S.D.N.Y. Aug. 26, 2008): [1. RICO Standing vs. Article III Standing.] [E]stablishing “RICO standing is a more rigorous matter than [establishing] standing…
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Website Evidence — Judicial Notice of Data on Government Website

From Paralyzed Veterans of Am. v. McPherson, 2008 Sept. Dist. Sept 69542 (N.D. Cal. Sept. 8, 2008): The plaintiffs request the Court take judicial notice, pursuant to Federal Rule of Evidence 201(b)(2), of two documents that appeared on the [California] Secretary of State's Internet website. The first is a December 6, 2007 letter approvi ...
From Paralyzed Veterans of Am. v. McPherson, 2008 Sept. Dist. Sept 69542 (N.D. Cal. Sept. 8, 2008): The plaintiffs request the Court take judicial notice, pursuant to Federal Rule of Evidence 201(b)(2), of two documents that appeared on the [California]…
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Federal Rule of Evidence 502 Is Now Law

The President signed Federal Rule of Evidence 502 on Friday, September 19. It is now law and applicable to existing cases, in the discretion of the trial judge. The text is linked to our post of September 9, 2008. ...
The President signed Federal Rule of Evidence 502 on Friday, September 19. It is now law and applicable to existing cases, in the discretion of the trial judge. The text is linked to our post of September 9, 2008.
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Securities — Loss Causation Need Not Be Shown at Certification Stage to Invoke the Basic Presumption and Establish Predominance — Court Split

Judge Richard J. Sullivan, in Lapin v. Goldman, Sachs & Co., 2008 U.S. Dist. LEXIS 69574 (S.D.N.Y. Sept. 15, 2008), followed the majority of decisions in the Southern District of New York, and rejected the rule of the Fifth Circuit, in holding that loss causation need not be established by the plaintiff in order to invoke the fraud on the market presumption o ...
Judge Richard J. Sullivan, in Lapin v. Goldman, Sachs & Co., 2008 U.S. Dist. LEXIS 69574 (S.D.N.Y. Sept. 15, 2008), followed the majority of decisions in the Southern District of New York, and rejected the rule of the Fifth Circuit,…
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American Arbitration Association Rules Do Not Automatically Empower Arbitrators to Issue Injunctive Relief — Who Knew?

Courts have been known to point to Rule 34 of the Commercial Arbitration Rules of the American Arbitration Association as an agreed source for the issuance of injunctive relief. See, e.g., Delta T Corp. v. Sun-North Sys., 2006 U.S. Dist. LEXIS 83655 (E.D. Ky. Nov. 15, 2006). Reading the Rule, this is understandable. Reading it, you would think that the arb ...
Courts have been known to point to Rule 34 of the Commercial Arbitration Rules of the American Arbitration Association as an agreed source for the issuance of injunctive relief. See, e.g., Delta T Corp. v. Sun-North Sys., 2006 U.S. Dist.…
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Does the Failure to File a Rule 50(b) Motion Deprive an Appellate Court of Subject Matter Jurisdiction to Consider the Sufficiency of the Evidence? — Impact of Bowles v. Russell Analysis

Fed.R.Civ.P. 50(b) provides: Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion. ...
Fed.R.Civ.P. 50(b) provides: Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted…
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LLC’s Citizenship Determined by the Citizenship of Its Members, Not by State of Organization — Issue of First Impression for Fifth Circuit

From Harvey v. Grey Wolf Drilling Co., 2008 U.S. App. LEXIS 19564 (5th Cir. Sept. 15, 2008): This appeal presents an issue of first impression in this circuit: whether, for purposes of federal diversity jurisdiction, a limited liability company ("LLC") is a citizen of the state where it is organized or is a citizen of the states of which ...
From Harvey v. Grey Wolf Drilling Co., 2008 U.S. App. LEXIS 19564 (5th Cir. Sept. 15, 2008): This appeal presents an issue of first impression in this circuit: whether, for purposes of federal diversity jurisdiction, a limited liability company (“LLC”)…
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Howard Hughes and RICO — Fraudulent Concealment Unavailing to Revive 30-Year-Old Claim Against Hughes’ Estate

The Melvin Dummar/Howard Hughes relationship not only lives on in film. In Dummar v. Lummis, 2008 U.S. App. LEXIS 19513 (10th Cir. Sept. 12, 2008), Mr. Dummar maintained that almost 30 years after an unsuccessful suit for a portion of the Hughes estate based on a holographic will, he obtained information regarding misconduct related to the trial he lost in t ...
The Melvin Dummar/Howard Hughes relationship not only lives on in film. In Dummar v. Lummis, 2008 U.S. App. LEXIS 19513 (10th Cir. Sept. 12, 2008), Mr. Dummar maintained that almost 30 years after an unsuccessful suit for a portion of…
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Expert Evidence Not Necessarily Sufficient to Preclude Summary Judgment — Good Quote; Statements of Undisputed Fact

Experts and Summary Judgment. The Second Circuit affirmed summary judgment for the plaintiff in Major League Baseball Props., Inc. v. Salvino, Inc., 2008 U.S. App. LEXIS 19349 (2d Cir. Sept. 12, 2008), in substantial part because the defendant’s economic expert did not conduct adequate empirical analysis to support opinions he offered in opposition ...
Experts and Summary Judgment. The Second Circuit affirmed summary judgment for the plaintiff in Major League Baseball Props., Inc. v. Salvino, Inc., 2008 U.S. App. LEXIS 19349 (2d Cir. Sept. 12, 2008), in substantial part because the defendant’s economic expert…
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Website Evidence — Judicial Notice of Data on Government Website

From Paralyzed Veterans of Am. v. McPherson, 2008 Sept. Dist. Sept 69542 (N.D. Cal. Sept. 8, 2008): The plaintiffs request the Court take judicial notice, pursuant to Federal Rule of Evidence 201(b)(2), of two documents that appeared on the [California] Secretary of State's Internet website. The first is a December 6, 2007 letter approvi ...
From Paralyzed Veterans of Am. v. McPherson, 2008 Sept. Dist. Sept 69542 (N.D. Cal. Sept. 8, 2008): The plaintiffs request the Court take judicial notice, pursuant to Federal Rule of Evidence 201(b)(2), of two documents that appeared on the [California]…
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Recent Posts

RICO: (1) Continuity: 4th Circuit Factors — (2) 4th Circuit Reserves RICO Liability for Unlawful Activities That Pose A Special Threat to Social Well-Being — (3) For Purposes of Determining Closed-Ended Continuity, Even Time-Barred Conduct Considered — (4) No Open-Ended Continuity If Racketeering Activity Has Built-In Ending Point — (5) Unlike General Federal Conspiracy, RICO Conspiracy Doesn’t Require Each Defendant to Perform an Overt Act in Furtherance of the Conspiracy

Whether Party Waived Arbitration by Litigating Is a Question for the Court, Not the Arbitrator

RICO: (1) Assignability of RICO Claims Uncertain — (2) Declining to Decide Whether Indirect-Purchaser Rule Applies to RICO (Given the Directness Requirement, How Much Does It Matter?) — (3) Two Types of Directness of Injury in Proximate Cause Analysis — (4) Proximate Cause As a Court Not Jury Issue in the First Instance

(1) RICO Pattern: Open-Ended Continuity — The Vendetta Exception — Jury Could Reasonably Infer That Scheme Directed at One Person, With Goal of Destroying His Current and Future Business Prospects, Presented A Threat of Continued Racketeering Activity Extending Indefinitely into the Future — Lawsuit’s “Fortuitous Interruption” of Scheme ≠ Lack of Threat of Continuing Racketeering Activity — Acts of Concealment Used to Perpetuate Violations — Multiple Schemes Not Required — Jury Could Judge Defendant’s Credibility in Assessing Threat of Continuing Criminal Activity — (2) RICO Conspiracy — Two Methods of Proof: Agreement to Overall Objective Or to Commit Predicate Acts — Agreement Can Be Inferred from Conduct — Conspirator Needn’t Know All Details, Have Contact with Other Conspirators Or Participate in Every Stage

Experts: “Normally, Courts Are Loath to Outright Dismiss An Expert” (Good Quote) — Experts Are Unhelpful If They Misstate the Law [Note Premise That Testimony on Law Not Precluded Outright] — Rule 37 Sanctions Unwarranted for Unjustifiable Failure to Produce Relevant Document Already in Requester’s Possession

FRAP 38 Sanctions: (1) Pressing Objectively Frivolous Arguments, Multiple Misstatements at Oral Argument and Failure to Address What District Judge Said Warrant Award against Appellants’ Counsel (Only) — (2) “General Award” of $5,000 Warranted Where Appellee Failed to Sufficiently Document Its Fees and Expenses [Goodyear v. Haegar Issue]]

RICO: Capital Call Investment Process Increasing Equity of Those Responding to Call at Expense of Those Not Responding ≠ Collection of An Unlawful Debt

RICO [And Constitutional] Standing: Concrete Injury Requirement Not Satisfied by Alleged Intangible Injuries of Intrusion Upon Seclusion, Confusion And Emotional Distress, Public Disclosure of Private Facts, Deterred Speech On Nondefamatory Matters, Violation Of First Amendment Rights, And Compulsion

Rule 37(b) Sanctions: Striking of Answer, Default Judgment, Civil Contempt and Piercing Corporate Veil for Deliberate Disregard of Multiple Orders to Produce — Finding of Deliberate Disregard of Court Order Is Factual, Triggering Clear Error Review — Discretion Narrows When Default Sanction Involved — Fourth Circuit Factors for Rule 37 Default Sanction Are Different Than Those for Inherent Power Dismissal Sanction — Continued Defiance of Court Orders And Millions in Unpaid Judgments And Tax Liens Render Lesser Sanctions Futile

RICO: No Causation for Company Harmed by Governmental Customers Shunning It After Employee Publishes Book Admitting He Bribed Governmental Officials — Harm Too Indirect, Not from Bribery (Predicate Act) But from Customers’ Decisions to Shun and Publication of Book (Both Lawful) — Customers Injured by Bribery of Their Officials Are More Direct Plaintiffs

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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